SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not Reportable
Case No: 4541/2024
In the matter between:
CHRISTOFFEL JOHANNES NAGEL PLAINTIFF
and
THE ROAD ACCIDENT FUND DEFENDANT
Coram: Masike AJ
Date Heard: 1 June 2026
Date supplementary heads of argument received: 8 July 2026
Date judgment reserved: 8 July 2026
Judgment is handed down electronically by distribution to the parties’ legal
representatives by e-mail, and released to SAFLII. The date that the judgment is
deemed to be handed down is 28 AUGUST 2026 at 10h00.
Summary: Civil Procedure – application for default judgment – defence of
defendant having been struck out – plaintiff amending particulars of claim after
striking out of defence – effect of rule 28(8) on defence that has been struck out
– rule 16(1) attorney on record and not withdrawing as such – service of notices
and documents at address other than that of attorney of record.
JUDGMENT
MASIKE AJ
Introduction
[1] This matter served before this Court on 1 June 2026 as an application for
default judgment for the determination of the quantum arising from a motor
vehicle collision that occurred on 2 September 2014 at about 16h15 and at
Mereingspark, Klerksdorp.
Factual Background
[2] Mr Christoffel Johannes Nagel (‘the plaintiff') instituted an action against
the Road Accident Fund (‘the defendant’). It is alleged by the plaintiff that on or
about 2 September 2014 , a motor vehicle collision occurred between a motor
vehicle bearing registration letters and numbers C[...] (‘the insured vehicle ’),
then and there driven by M P Smit , (‘the insured driver ’), and a motor vehicle
bearing registration letters and numbers J[...] then and there driven by the
plaintiff.
[3] It is alleged that the motor vehicle collision occurred as a result of the
sole negligence of the insured driver, who was negligent in one or more of the
following respects:
‘3.1 She failed to keep a proper lookout;
3.2 She drove too fast under the prevailing circumstances;
3.3 She failed to brake sufficiently, timeously or at all;
3.4 She failed to adhere to the rules of the road;
3.5 She failed to keep the insured vehicle under proper control;
3.6 She failed to avoid a collision which could have been avoided had he acted
reasonably;
3.7 She executed a right -hand turn thereby encroaching on the path of travel of the
Plaintiff’s overtaking vehicle when it was inopportune and unsafe to do so;’
[4] It is alleged that, as a result of the motor vehicle collision, the plaintiff
sustained injuries in the form of (a) soft tissue head injury with open wounds in
the region of the right zygoma and chin with brain oedema and concussion; (b)
spain and strain injury to the cervical spine; (c) soft tissue injuries to the right
shoulder and both hands; (d) right -sided haemothorax; (e) fracture of the ankle,
tibia and fibula of the right lower leg; ( f) fracture of the right femur and pelvis;
(g) soft tissue injuries to the left ankle; (h) open wounds to the right thigh. The
plaintiff claimed R1 375 400 .00 against the defendant for personal injuries
arising from the motor vehicle collision.
[5] The defendant is a statutory institution established under the Road
Accident Fund Act, Act 56 of 1996 ( ‘the RAF Act ’). Plaintiff instituted the
action against the defendant because in terms of s 17(1)(a) of the RAF Act, in
the case of a claim for compensation from the driving of a motor vehicle where
the identity of the owner or the driver thereof has been established; the
defendant is obliged to compensate any person (the third party) for any loss or
damage which the third party has suffered as a result of any bodily injury to
himself or herself or the death of or any bodily injury to any other person,
caused by or arising from the driving of a motor vehicle by any person at any
place within the Republic, if the injury or death is due to the ne gligence or other
wrongful act of the driver or of the owner of the motor vehicle or of his or her
employee in the performance of the employee's duties as employee: Provided
that the obligation of the Fund to compensate a third party for non -pecuniary
loss shall be limited to compensation for a serious injury as contemplated in
subsection (1A) and shall be paid by way of a lump sum.
[6] The defendant defended the action and is represented by the firm of
Tsebane Moloba Inc. On consideration of the pleadings and notices filed before
this Court, this Court noted that the defendant’s plea was served on the offices
of the plaintiff’s attorneys on 10 April 2018.
[7] It is important to state that the plaintiff’s action against the defendant was
initially instituted in the High Court of South Africa, Gauteng Division,
Pretoria (“Pretoria High Court”) under case number 57941/2018.
[8] The action instituted by the plaintiff against the defendant in the Pretoria
High Court was transferred to the High Court of South Africa, North West
Division, Mahikeng ( ‘North West High Court ’), pursuant to the court order of
the Honourable Justice Motha J (Motha J) dated 18 August 2024.
[9] An inspection of the contents of the court file before this Court reveals
that the Registrar of the North West High Court allocated the case number
4541/2024 to this matter on or about 30 August 2024.
[10] This Court further observed that on the date that the Registrar of the
North West High Court allocated the case number 4541/2024, the Registrar was
presented with a filing notice which contained: (a) Court order dated 16 August
2024 – re transfer of the matter to the High Court of South Africa, North West
Division, Mahikeng ; (b) Court order – Defendant’s defence is struck out as
issued in the Pretoria High Court, granted on 16 April 2024; (c) Court order –
Defendant’s to compel the defendant to file a properly drafted discovery
affidavit as issued in the Pretoria High Court, granted on 30 August 2023; (d)
Court order – Merits settled order out as issued in the Pretoria High Court,
granted on 27 May 2020 ; and (e) Copies of bundle pleadings as issued in the
Pretoria High Court.
[11] From the contents of the filing notice that was presented to the Registrar
of the North West High Court, the defendant's defence was struck out on 16
April 2024.
[12] An examination of the court file further reveals that on 2 1 July 2025, a
notice of substitution of correspondent attorneys at the seat of court was
purportedly served on the defendant. Service of the notice of substitution of
correspondent attorneys was effected by way of email and forwarded to the e -
mail address PTAmotions.
[13] On 16 September 2025, the plaintiff's attorneys purportedly served a
notice of set down for the hearing of the application for default judgment on 1
June 2026, by e -mail to the email addresses S[...] and N[...]. In addition, the
notice of set down was served on the State Attorney's offices in Pretoria by hand
on 17 September 2025. This is evinced by the date stamp on the copy of the
served notice of set down.
[14] On 24 March, the plaintiff’s attorneys purportedly served a notice of set
down for the hearing of the application for default judgment on 1 June 2026 by
email to the address S[...] and g[...]. On 26 March 2026, the plaintiff’s attorneys
served notice of set down on the defendant's offices by hand.
[15] On 22 April 2026, the plaintiff's attorneys purportedly served the
defendant with a notice of intention to amend by way of email to the addresses
S[...] and g[...]. In addition, the notice of intention to amend was served on the
defendant's offices by hand on 23 April 2026, as evidenced by the defendant's
date stamp.
[16] The intended amendment referred to in paragraph 1 5 above related to an
increase in the claim amount by the plaintiff from R1 375 400.00 to R 2 625
150.71. On 12 May 2026, the attorneys of the plaintiff purportedly effected the
amendment by serving the amended particulars of claim on the defendant by
way of e -mail at the following email addresses : S[...] and g[...]. I further noted
that the plaintiff's attorneys' purported amendment was effected by hand by
delivering the amended pages at the defendant's offices on 14 May 2026. This is
evinced by the date stamp of the office of the defendant on the filing notice of
the attorneys of the plaintiff.
[17] On 21 May 2026, the attorneys of the plaintiff purported to serve on the
offices of the defendant via email at the following email addresses : S[...] and
g[...] a notice under rule 38(2) of the Uniform Rules of Court ‘URC’.
[18] The application for default judgment served before this Court on 1 June
2026. Having considered the submissions made by counsel and the documents
that served before this Court in support of the application for default judgment. I
have a difficulty with the application. I am of the view that the defendant had
until 2 June 2026 to make consequential adjustments to the documents filed by
it because of the amendment to the particulars of claim which was effected on
12 May 2026 , and the defendant was, in my view , not precluded from taking
steps as contemplated in rules 23 and 30 of the URC 1 and the application for
default judgment was not properly before this Court on 1 June 2026 . I address
the reasons in the subsequent paragraphs.
Legal Principles And Analysis
[19] Striking out a defence is a drastic measure. It precludes the defendant
from advancing legal defences raised as special pleas and from placing
countervailing evidence to that of the plaintiff before the court.2
1 Rule 28(8) of the URC reads : (8) Any party affected by an amendment may, within 15 days after the
amendment has been effected or within such other period as the court may determine, make any consequential
adjustment to the documents filed by him, and may also take the steps contemplated in rules 23 and 30.
2 T.P.R obo P.M.M v Road Accident Fund (9117/2019) [2024] ZAGPPHC 387 (18 April 2024) (T.P.R) Para 14
[20] In T.P .R Davis J said the following, in answer to the question, does an
amendment to a plaintiff’s particulars of claim after a defence has been struck
out ‘open the door’ to a new plea?
‘[19] The first part of the answer is that in general the delivery of a substantial
amendment to a plaintiff’s particulars of claim, even if only in respect of quantum, has the
effect of “reopening” the pleadings and thereby has the result that litis contestatio falls away.
This much has expressly been found in Olivier: “ When due consideration is had to the
amended particulars of claim, the amendments are substantial and material. There are new
aspects that in my view would require some consideration. It may be so that this increase in
quantum did not alter the cause of action, the identity of the parties and the scope of the
issues in dispute … Notwithstanding, the scope of damages has been increased significantly
and it would without doubt require a pleading”. I respectfully align myself with this view.
[20] Although doubt had been expressed whether an immaterial or minor amendment
would have the same result of a “fresh litis constestatio”, it must be beyond doubt that any
substantial amendment would have the result that pleadings are reopened. That the Supreme
Court of appeal has confirmed in Endumeni. By way of illustration, in Olivier, the amount of
damages was increased from R6 105 000.00 to R7 155 500.00 and the court found that that
would have entitled a defendant to plead thereto. In the present matter the amount of
damages was even more significantly increased.
[21] The pertinent question is whether the “reopening of the pleadings” would also apply
in instances where the defendant’s defence had been struck out. In Endumeni the origin of
the concept of litis constestatio has been explained by reference to Roman Law and by way of
a reference to the following explanation thereof by Hollmes AJ in Government of the
a reference to the following explanation thereof by Hollmes AJ in Government of the
Republic of South Africa v Ngubane : “In modern practice litis constestatio is taken as being
synonymous with close of pleadings, when the issue is closed and joined … . And in modern
terminology, the effect of litis contestatio is to “freeze” the plaintiff’ s rights as at that
moment”.
[22] A defence which has been struck out by a court, would have been a response to a
plaintiff’s pre-amendment case and to the quantum which the plaintiff had then claimed he or
she would be entitled to. Once that claim had been “frozen” by the close of pleadings and the
plaintiff thereafter seeks to “unfreeze” its position, there can, in my view, be no objection to
allow a defendant to plead to this “unfrozen” or reopened case. To allow a defendant to plead
afresh, would also be consistent with the provisions of Rule 28(8) which expressly allows
“any party affected by an amendment… to make… any consequential adjustment to the
documents filed by him”.
[23] To argue that the “documents” filed by the defendant had been struck out and
therefore that there was nothing left in respect of which “adjustment” should be allowed,
would in my view again place an unduly prohibitive limitation on the defendant’s Section 34
rights.
[24] Another reason for allowing the defendant to enter the fray afresh, is that to refuse a
defendant to do so when the plaintiff had altered its case, would offend against one of the
most basic premises of our law and procedure, namely the right to be heard or the audi
alterem partem – principle. While the defendant may have been silenced in respect of the
previously pleaded case of the plaintiff as a result of the defendant’s non -compliance with a
procedural obligation (reinforced by an order of court or a directive), that “silencing” should
not operate in perpetuity or in respect of a “new” case. To do so be would so manifestly
unfair and contrary to the spirit of the Constitution, that it should not be contemplated.
[25] The question posed must therefore be answered in the affirmative, the only
qualification being that the plea must be limited to the “consequential” aspect. Should the
plaintiff, as he has dome in this matter, only amend the nature or the extent of the relief
sought, the consequential plea contemplated in Rule 28(8) will have to be limited to that
aspect. It would be impermissible for the defendant to attempt, by way of an amended plea,
to “reopen” the issues of the merits or its previously struck out special pleas. ’3 [footnotes
omitted]
omitted]
[21] The Honourable Davis J further gave the following warning at paragraph
26 of T.P .R:
‘Having regard to the virtual consistent propensity of plaintiffs in RAF matters to effect
amendments to their particulars of claim at a late stage in the proceedings, whether that may
3 T.P.R Para [19] to [25].
be due to changed circumstances, the passage of time occasioned by this Division’s congested
roll of RAF matters or for whatever other reason, such amendments should be effected
timeously. If done too shortly prior to the date of hearing, particularly where the time for
objection had not yet even run out, would result in the pleadings not yet having been
“reopened” or, if the amendment has been effected but the 15 day period contemplated in
Rule 28(8) for consequential amendments had not yet expired, it might result in the matter no
longer being ripe for hearing.’
[22] The matter of Olivier v MEC for Health, Western Cape 4 which Davis J
referred to in T.P .R was taken on appeal to the Supreme Court of Appeal
(SCA).5 Kgoele JA (as she then was) , writing for the court , said the following
on the question of whether litis contestatio falls away when pleadings are
amended subsequent to it being achieved:
‘[10] Whether litis contestatio has been reached is a matter dealt with in rule 29(1) of the
Uniform Rules of Court (the rules), which prescribes when pleadings are considered to have
closed. However, rule 29 is silent as to what the effect of an amendment brought after this is.
However, in Natal Joint Municipal Pension Fund v Endumeni Municipality (Endumeni), this
Court recognised that amendments to pleadings might alter the scope of the litigation, with
consequences for litis contestatio. It stated:
‘The answer is that when pleadings are re -opened by amendment or the issues between the
parties are altered informally, the initial situation of litis contestation falls away and is only
restored once the issues have once more been defined in the pleadings or in some other less
formal manner. That is consistent with the circumstances in which the notion of litis
contestatio was conceived.’
[11] Relatedly, Kruger J in K.J.S v M.J.S , taking a cue from Endumeni, expanded on this
issue and explained that an amendment must be material to undo the earlier achievement of
issue and explained that an amendment must be material to undo the earlier achievement of
litis contestatio. This is in line with the maxim de minimis non curat lex (ie, the law does not
concern itself with trivialities). In simple terms, a non -trivial amendment will be immaterial.
4 2023 (2) SA 551(WCC).
5 Oliver NO v MEC for Health: Western Cape Provincial Department of Health (886/2023) [2025] ZASCA 45;
2025 (5) SA 384 (SCA) (17 April 2025) .
In my view, the decision is sound. It was also endorsed in Ngubane v Road Accident Fund
and is also consistent with Endumeni. This brings me to the key question: are the
amendments material?’6 [footnotes omitted]
[23] There can be no debate that the amendment by the plaintiff of h is
particulars of claim from R1 375 400.00 to R2 625 150.71 is substantial. I agree
with the observations of Davis J in T.P .R.
[24] The consequential adjustments to the documents filed by the defendant as
a result of the amendment are limited as set out in rule 28(8) 7 of the URC. It
would be impermissible for the defendant to attempt, by way of an amended
plea, to ‘reopen’ the issues of the merits of its previously struck out plea. In this
matter, the plaintiff amended the claimed amount in the initial particulars of
claim; the consequential adjustment to the defendant's documents would be
limited to addressing the new claimed amount.
[25] In addition to agreeing with Davis J with his observations in T.P .R, I am
bound by the decisions of Oliver NO v MEC for Health: Western Cape
Provincial Department of Health (886/2023) [2025] ZASCA 45; 2025 (5) SA
384 (SCA) (17 April 2025) and Natal Joint Municipal Pension Fund v
Endumeni Municipality (Endumeni) [2012] ZASCA 13; [2012] 2 All SA 262
(SCA); 2012 (4) SA 593 (SCA) on the question of whether a material
amendment to particulars of claim made after litis contestatio has the effect of
reopening the pleadings.
6 Oliver NO v MEC for Health: Western Cape Provincial Department of Health (886/2023) [2025] ZASCA 45;
2025 (5) SA 384 (SCA) (17 April 2025) Para [10] and [11]
7 URC 28(8) reads as follows: (8) Any party affected by an amendment may, within 15 days after the
amendment has been effected or within such other period as the court may determine, make any consequential
adjustment to the documents filed by him, and may also take the steps contemplated in rules 23 and 30.
[26] When this matter served before this Court on 1 June 2026, the 15 -day
period to allow the defendant to make consequential adjustments to his papers
had not lapsed. The period lapsed on 2 June 2026. Thus, the warning by Davis J
in T.P .R. finds application in this matter . The application for default judgment
was not ripe for hearing on 1 June 2026. On 28 June 2026, this Court issued a
directive directing the plaintiff to file supplementary heads of argument dealing
with the following concerns the Court had noted with the application for default
judgment that served before it on 1 June 2026:
‘6.1 By amending the claimed amount, was this not a substantial amendment which had
the effect of reopening the pleadings and thereby had the result that litis contestatio
fell away? Whether the “reopening of the pleadings” would also apply in instances
where the defendant’s defence had been struck out?
6.2 Was the application for default judgment properly before the court on 1 June 2026, in
light of the 15-day period for the defendant to make consequential adjudgments to its
documents only lapsed on 17 June 2026?
6.3 Was the service of the set down and subsequent notices on the offices of the defendant
by way of email and/or by hand, proper service when one considers the address of
service is that of the attorneys Tsebane Molaba Inc, and it does not appear the
mandate of the attorneys has been terminated, and the attorneys have not withdrawn
as attorneys of record for the defendant?
6.4 Was the order of Motha J served on the Tsebane Molaba Inc as the attorneys for the
defendant?’
[27] The supplementary heads of argument on behalf of the plaintiff have been
received, for which this Court is grateful. It is submitted in the supplementary
heads of argument that the reference in paragraph 6.2 of the directive that the
15-day period for the defendant to make consequential adjustments to its
documents lapsed on 2 June 2026 and not 17 June 2026 as indicated in the
directive of this Court. Counsel for the plaintiff is correct on this point ; the
referral to 17 June 2026 in the directive was a typing error.
[28] It is submitted in the supplementary heads of argument of the plaintiff
that the conduct of the defendant ‘evidenced a recalcitrant litigant not interested
in participating in the matter.’ 8 It is submitted on behalf of the plaintiff that the
conduct of the defendant shows no intention to participate in the proceedings,
no request to plead to the amended papers and no request for a postponement,
etc, it is further submitted that the defendant does not rely on or insist on the
implementation of rule 28(8), it is this Court making enquiries concerning the
rule.
[29] This Court was further referred to the decision of Eke v Parsons 9 at
paragraphs 39 and 40, where the Constitutional Court said the following:
‘…Without doubt, rules governing the court process cannot be disregarded. They serve an
undeniably important purpose. That, however, does not mean that courts should be detained
by the rules to a point where they are hamstrung in the performance of the core function of
dispensing justice. Put differently, rules should not be observed for their own sake. Where
the interests of justice so dictate, courts may depart from a strict observance of the rules.
That, even where one of the litigants is insistent that there be adherence to the rules. Not
surprisingly, courts have often said “[ i]t is trite that the rules exist for the courts, and not the
courts for the rules”.
[40] Under our constitutional dispensation, the object of court rules is twofold. The first is to
ensure a fair trial or hearing. The second is to “secure the inexpensive and expeditious
completion of litigation and . . . to further the administration of justice”. I have already
touched on the inherent jurisdiction vested in the superior courts in South Africa. In terms of
8 Case Lines, Section 001, Item 2, 001-29, paragraph 2.1.
9 [2015] ZACC 30.
this power, the High Court has always been able to regulate its own proceedings for a number
of reasons, including catering for circumstances not adequately covered by the Uniform
Rules, and generally ensuring the efficient administration of the courts’ judicial functions.’
[30] It is further submitted on behalf of the plaintiff that, in insisting on
compliance with rule 28(8), when ‘all indications are that the Defendant has
abandoned such right, will inevitably only have the effect to further delay
finalisation of cases, not be in the interests of justice and overburden already
overburdened trial rolls.’
[31] The concept of ‘interests of justice’ is so elastic that it is not capable of
precise definition10 and this Court has no intention of defining it in this
judgment. This Court understands the submissions on behalf of the plaintiff
quoted in paragraph 3 0 above to mean that the plaintiff contends that the
defendant has waived its rights under rule 28(8).
[32] Waiver is the legal act of abandoning a right on which one is otherwise
entitled to rely.11 It is not easily inferred or established. The onus to prove it lies
with the party asserting waiver . That party is required to establish that the right
holder, with full knowledge of the right, decided to abandon it.12
[33] I cannot, with respect, agree with counsel for the plaintiff that the
defendant waived its rights under rule 28(8) to make consequential adjustments
to its documents. As at 1 June 2026, the defendant was within the 15 -day period
10 Grootboom v National Prosecuting Authority and Another (CCT 08/13) [2013] ZACC 37; 2014 (2) SA 68
(CC); 2014 (1) BCLR 65 (CC); [2014] 1 BLLR 1 (CC); (2014) 35 ILJ 121 (CC) (21 October 2013)
(Grootboom) para 22.
11 SA Eagle Insurance Co Ltd v Bavuma 1985 (3) SA 42 (A) at 49G-H.
12 Laws v Rutherfurd - 1924 AD 261at page 263.
to make such consequential adjustments to its documents, and the inference that
it waived this right could, in my view, only be made after 2 June 2026 or before
then by the defendant in unambiguous terms communicat ing to the plaintiff that
it waives its rights under rule 28(8). In the application for default judgment that
served before this Court, there was nothing to suggest that the defendant
communicated its intention to waive its rights under rule 28(8) to the attorneys
of the plaintiff or to this Court. The contention on behalf of the plaintiff that the
defendant waived its rights under rule 28(8) when the matter served before this
Court on 1 June 2026, is misplaced and cannot be sustained.
[34] There was further no application advanced before this Court for
condonation of the non -compliance with the rules of the court. C ondonation
cannot be had for the mere taking. A party seeking condonation must make out a
case entitling it to the court’s indulgence. It must show sufficient cause. This
requires a party to provide a full explanation for non -compliance with the rules
or the court’s directions.13
[35] Rule 27(3) of the URC reads as follows:
‘(3) The court may, on good cause shown, condone any non-compliance with these rules.’
[36] This subrule empowers the court to condone any non-compliance with the
rules and is not confined to non -compliance with rules other than those laying
down time -limits.14 The court's wide powers to condone non -compliance with
its own rules are subject to the requirement and safeguard that good cause be
shown. It is accepted that ‘good cause’ requires an acceptable explanation for
13 Grootboom, para 23.
14 Erasmus: Superior Court Practice - RS 26, 2025, D1 Rule 27-8; Dalhouzie v Bruwer 1970 (4) SA 566 (C) at
571E.
the non-compliance with the rules of the court . When a party reali ses that he or
she has not complied with a court rule, that party should apply for condonation
without delay.15
[37] Surely the attorneys of the plaintiff should have realised that the date
allocated for the hearing of the application for default judgment was within the
period of 15 days for the defendant to make consequential adjustments to its
documents. In my view, the options available to the plaintiff would have been to
(a) abandon the intended amendment; (b) postpone the application for default
judgment to a date after the 15 -day period for the defendant to make
consequential adjustments to its documents ; or (c) bring an application for
condonation for the non -compliance with the rules of the court which would
have required the plaintiff to give the defendant notice of the application before
the hearing of the application for default judgment.
[38] The plaintiff, despite this Court's directive indicating its concerns, persists
in the view that the application for default judgment was properly before this
Court on 1 June 2026. As I have shown above, it was not properly before this
Court.
[39] Turning to paragraphs 6.3 and 6.4 of the directive of this Court, and
having considered the email communications between the plaintiff's attorneys
and the office of the defendant , the office of the defendant having
acknowledged receipt of the notice of set down via email and requested
additional documents from the plaintiff's attorneys . This Court is satisfied that
service of the set down and subsequent notices on the offices of the defendant
15 Commissioner for Inland Revenue v Burger 1956 (4) SA 446 (A) at 449G–H).
by way of email and/or hand, was effective service even though it was not
served on the offices of Tsebane Molaba Inc. This Court is further satisfied that
despite the order of Motha J not being served on Tsebane Molaba Inc, and
service of the order being effected directly on the defendant, the defendant has
not been prejudiced by that form of service.
The rule 38(2) order made on 1 June 2026
[40] On 1 June 2026, counsel for the plaintiff moved the rule 38(2) application
for the evidence of the plaintiff’s expert witnesses to be led by way of affidavit.
Having found that the application for default judgment was not properly before
this Court on 1 June 2026 , what does it mean for the rule 38(2) application
which was heard on 1 June 2026?
[41] Practice Directive 19A of the Practice Directives of the North West High
Court reads as follows:
‘1. A substantive application shall be brought before the Presiding Judge by any of the
parties if such party intends to request the Presiding Judge that evidence is required to
be adduced on affidavit at any trial or that the affidavit of any witness be read at the
hearing.
2. An application in terms of Uniform Rule 38(2) shall be brought before the
commencement of the trial, on due notice in terms of Rule 6, to the other parties in the
litigation.’
[42] This Court is satisfied that when the application for default judgment was
heard on 1 June 2026, the plaintiff complied with Practice Directive 19A (1) and
(2) of the Practice Directives of the North West High Court. Just because the
application for default judgment was not properly before this Court, I see no
reason to throw out the baby with the bath water. The application under rule
38(2) succeeds . Accordingly, this application stands as a part -heard matter
before this Court and will be treated as such.
Costs
[43] The defendant did not take part in the proceedings before this Court on 1
June 2026, for reasons unknown to this Court. It will be in the interests of
justice for the costs of 1 June 2026 to be reserved for determination on the date
of the further hearing of the application for default judgment.
Order
[44] Resultantly, the following order is made:
1. The application for default judgment heard on 1 June 2026 is
postponed to 16 September 2026 for further hearing.
2. The plaintiff is ordered to serve the defendant with a notice of set-
down for the further hearing of the application for default judgment no
later than 2 September 2026 via email at the following email
addresses: S[...] and g[...] or any other addresses found to be relevant
for service.
3. The costs of 1 June 2026 are reserved to be addressed on 16
September 2026.
4. The further hearing of the application for default judgment is to serve
before Masike AJ in open court on 16 September 2026.
__________________________________
T MASIKE
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
APPEARANCES
For the Plaintiff: Adv G Maree
Instructed by: Brandt & Lambrechts Attorneys
C/o Bruce Loxton Attorneys
REF: CVR/CP0071 (M)
E-mail: info@cvratt.co.za
For Defendant: No appearance
Instructed by: The Road Accident Fund
Email: SetdownNotices.PTA@raf.co.za
and gladysm@raf.co.za
Date Heard: 1 June 2026
Date when supplementary
heads argument received 8 July 2026
Date Handed Down: 28 August 2026